Dismissed

Munuswamy v. Raman

Madras HC7 Dec 2016SA/1710/1995

Case brief

AI extract

What is this about?

In a second appeal regarding a suit for permanent injunction over property ownership, the High Court of Madras held that when the title dispute is baseless and there is no legal impediment, a suit solely for injunction is maintainable. The court accepted plaintiff evidence of possession and rejected defendant's claim of title.

What did the court decide?

The second appeal was dismissed; the judgment of the lower appellate court reversing the trial court was confirmed.

Munuswamy Vs Raman — Property and Title | Madras HC (2016)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

Reserved on 01.12.2016

¶3

Date of Verdict : 07.12.2016

¶4

CORAM

¶5

THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN
S.A.No. 1710 of 1995
and C.M.P.No.163 of 2013
1. Munuswamy
2. Subbarayan
3. Mari
4. Ponnuswamy ...Appellants/ Defendants
Vs.
1. Raman (Deceased)
2. Subbarayan
3. Ekambaram
4. Muniammal
5. Kilimma
6. Navammal
7. Rani
(Respondents 2 to 7, brought on record as LRs
of the deceased sole respondent vide order
of Court dated 03.09.2009 made in CMP.
No.17056 of 05 in SA.No.1710 of 1995.
...Respondents/ LRs of Plaintiff

¶6

Prayer:- This Second Appeal is filed under Section 100 of Civil Procedure Code against the Judgment and decree passed in A.S.No.29 of 1991 dated 26.02.1993 on the file of the Court of Subordinate Judge, Arni, North Arcot District reversing the Judgement and Decree passed in O.S.No.390 of 1984 dated 20.12.1990 on the file of the Additional District Munsiff, Arni.

¶7

For Appellants : Mr.P.Seshadri

¶8

For Respondents: Mr.D.Bharatha Chakravarthy for M/s.Sai Bharath & Ilan for R2 to R7

¶9

JUDGMENT

¶10

The defendants in the suit are the appellants before this court. In the suit for permanent injunction, the trial court accepted the plea of the fourth defendant that he has

¶11

https://hcservices.ecourts.gov.in/hcservices/

¶12

purchased 50 1/2 cents out of 1 acre 1 cents falling West of the suit property from its owners who are the defendants 1 to 3 and granted injunction to the plaintiff restricting the relief to the 50 1/2 cents of land falling East of the suit property partly allowed the suit. As against the judgement and decree of the trial court, the plaintiff preferred appeal before the SubCourt, Arni. The first appellate court reversed the trial court judgment. Allowed the suit. Hence aggrieved by the reversing judgment the present second appeal.

¶13

The brief facts leading to this appeal is as under:One Ponnan had two wives namely, Kuppammal and Poongavanthammal. The plaintiff Raman is the Ponnan's second wife son. The defendants 1 to 3 are Ponnan's grand children born through the first wife. According to the plaintiff, the suit property originally owned by his brother Modavarutti. After the death of Modavarutti, he and his sister the 5^th defendant were enjoying it. Later 5^th defendant also died, leaving the plaintiff to possess and enjoy the property. While so, defendants 1 to 4 are trying to disturb his peaceful possession. Contrarily, the 4^th defendant has contested the injunction suit on the ground, that the property does not belong to Modavarutti. It is the property of his father Ponnan. Being the Manager of the joint family, patta was issued in the name of Modavarutti. The defendants 1 to 3 who are the children of Ellan born to the first wife of Ponnan are entitle for 1/2 share in the property. That half share in the suit property inherited by them from Ponnan lay on the west of the suit property. He purchased that from defendants 1 to 3 under the sale deed dated 28.11.1983. Since then he is in possession and enjoyment of the property.

¶14

The trial court considering the entry in Ex.A-1 patta in the name of Modavarutti in respect of the suit property show it is by inheritance (vazimurai - tHpKiwapy; ) and Ex.B1, Ex.B-2 the notice issued to Munusamy S/o Ellan under section 9 of Survey and Boundries Act and the sale deed executed by Munusamy and others in favour of 4th defendant respectively held that the defendants are entitle for 50-1/2 cents land in the suit property. Recognised their title and right over the property, held the sale deed infovour of the 4^th defendant in respect of 50 1/2 cents land valid and restricted the relief of injunction in favour of the plaintiff in respect of the remaining 50-1/2 cents land.

¶15

Whereas on reappriciation of the evidence, the first appellate court found that the documents relied by the parties are the chitta and adangal for the fasali years 1382 to 1386 which are in the name of one Narayanan ( Ex.B-5 to Ex.B-9 ). Chitta and adangal for the fasali years 1387 to 1393 are in the name of Modavarutti ( Ex.B-10 to Ex.B-15). Kist receipts Ex.A-3

¶16

https://hcservices.ecourts.gov.in/hcservices/

¶17

to Ex.A-7 are in the name of the plaintiff. Whereas, Ex.B-1 is not a patta but only a notice of enquiry for ganting patta under UDR Scheme in the name of Munusamy, S/o. Ellan. So it is neither a patta nor proof for title. In the absence of material evidence that the defendants 1 to 3 had right or title over the property, the sale deed in favour of 4^th defendant is non est. For the said reasons, the first appellate court reversed the finding of the trial court and allowed the suit.

¶18

This court while admitting the second appeal has

¶19

formulated the following question of law:-

¶20

Whether the lower appellate Court is right in reversing the well considered finding of the trial Court without assigning any valid reasons?

¶21

Whether the reasoning of the lower appellate Court in accepting Ex.P.1 and rejecting Ex.D.1 is correct.?

¶22

Whether the suit for bare injunction without relief of declaration, is maintainable especially in the light of the pleading, not confirming to the mandatory provisions of Section 38 of the Specific Relief Act?

¶23

The learned counsel for the appellant submitted that, when there is no deed of title to trace the owner ship, the other best evidence available has to be taken note. In this case, the best evidence is Ex.A-1 patta which stands in the name of Modavarutti s/o Ponnan and shown as patta assigned to him through inheritance and Ex.B-1 the notice to the first defendant for issuance of patta under UDR scheme. The other best evidence is the chitta and adangal Ex.B-5 to B-9 which stands in the name of one Narayanan. Who was examined on behalf of the defendant as DW-3 who has deposed that the property belongs to Ponnan and he was not able to pay the kist so he paid kist and that is the reason why the chitta and adangal Ex.B-5 to 9 stands in his name. Therefore, defendants 1 to 3 who are the vendors of the 4^th defendant are entitle to sell their share in the suit property. The lower appellate court erred in reversing the well considered judgment of the trial court by rejecting Ex.B-1. and accepting Ex.A-1 without giving due weightage to the word inheritance mentioned in it. In suits of this nature, where there is cloud over the title, the plaintiff ought to have sought for declaration and consequentially injunction. Suit for bare injunction is not maintainable.

¶24

Per contra, the learned counsel for the respondent submitted that, so far as title to the suit property, the patta Ex.A-1 stand in the name of his brother and the doubt raised by the defendants regarding title is baseless. So far as possession is concern, Ex.A-3 to Ex.A-7 kist receipts as well as

¶25

https://hcservices.ecourts.gov.in/hcservices/

¶26

the defendants own documents Ex.B-10 to Ex.B15 chitta and adangal establish the possession of the property with the plaintiff. Therefore, the lower appellate court has rightly allowed the suit by reversing the judgment of the trial court. In view of the settled position of law, there is no substantial question of law involved in this appeal.

¶27

At the outset this court is bound to point out by way of clarification, that only Ex.A-1 is patta which is issued in the name of Modavauritti on 28.1.1979 by the Thasildar and its genuiness is not in dispute. Whereas Ex.B-1 is not a patta. It is an enquiry notice under section 9 of Survey and Boundries Act, calling upon interested parties for the enquiry whether patta can be issued to Munusamy or not in respect of the suit schedule property. The learned trial court judge has mistaken Ex.B-1 as patta document and has weighed it against Ex.A-1. As pointed out by the learned counsel for the respondent, this notice is dated 22.11.1983 in respect of entire extend of 1.01 acre and not restricted to 50 1/2 cents. While so, immediately on receipt of this notice, even before participating in the enquiry and getting patta for their so called entitlement, Munusamy and others have sold 50 1/2 cents to 4^th defendant on 28.11.1983. It is thus very clear that on the date of purchase by the 4^th defendant, his vendors had no title or possession over the property, nor patta as claimed by them. To add, the contra plea of the defendants that the patta was issued in the name of Modavarutti not as absolute property but only as manager of joint family property also fails for want of proof.

¶28

When there is no title deed on either side, patta document gains significance. It plays the role of a title deed . The case of the plaintiff is that Ex.A-1 patta was issued to his brother Modavarutti since he own the property. After his death, being his brother, the plaintiff is in enjoyment and possession over it in the absence of other legal heirs to share. The defendants have failed to controvert this assertion. It is proved through evidence by the plaintiff that the defendants 1 to 3 had transferred the property to the 4^th defendant without having any title. It is well settled doctrine ' no one gives what he has not got' ( Nemo dat qui non habet ).

¶29

When there is no cloud over the title and the dispute raised by the defendants about the title is only a baseless dispute, there is no legal impediment to file a suit seeking the relief of permanent injunction alone without a relief for declaration.

¶30

For the reasons stated above, there is no ground to interfere the judgment of the lower appellate court. The Lower appellate court judgment reversing the trial court judgment is confirmed. In the result, appeal dismissed. No order as to

¶31

https://hcservices.ecourts.gov.in/hcservices/

¶32

costs. Consequentially, connected miscellaneous petition is closed.

¶33

Sd/-
Asst.Registrar (CS VII )
/true copy/
Sub Asst. Registrar
To
1. The Subordinate Judge, Arni, North Arcot District
2. The Additional District Munsiff, Arni.
Copy to
The Section Officer
VR Section
High Court, Madras
1 cc to Mr.P. Seshadri, Advocate, Sr. 71949
1 cc to M/s. Sai Bharath and Ilan, Advocate, Sr. 72021
S.A.No. 1710 of 1995
and C.M.P.No.163 of 2013
PA (CO)
kk 9/1

¶34

https://hcservices.ecourts.gov.in/hcservices/

Munuswamy v. Raman

Case brief

What is this about?

What did the court decide?

Munuswamy v. Raman

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Gunasekaran Vs Valliammai

Samundeswari Vs Vasu

P.Chinnappa Pillai Vs v.Rukumani W/O Veeramani

Tmt.Suseela Vs S.Nagaraj

G.Kalyana Sundaram Vs v.Arunachalam (Deceased)

Lurthumary (Deceased) Vs M.Vijaya